Exclusions from Entitlement

Page 129

Chapter 15

Exclusions from Entitlement

SCOPE OF EXCLUSIONS FROM ENTITLEMENT TO BENEFIT
15.1 Article 11 of the AFCS 2011 specifies exclusions from entitlement to benefit relating to travel between home and work, slipping and tripping, and sports and social events. The AFCS 2005 specified circumstances in which benefit was payable under that Order,¹but article 11 of the AFCS 2011 specifies the circumstances in which benefit is not payable. Applying the usual principles of statutory interpretation, the exclusions in article 11 would therefore only apply if a claimant would otherwise be entitled to benefit under articles 8, 9 or 10 because service was the cause, or predominant cause, of the injury, worsening of injury, or death. However, that would very seldom be the case in the situations covered by article 11. Moreover, if service is in fact the cause, or predominant cause, of injury, worsening of an injury or death, it is difficult to justify disqualification from benefit, even in the circumstances provided for by article 11.

15.2 As Judge Rowland observed in JG v Secretary of State for Defence (AFCS),²the drafting of article 11 of the AFCS 2011 is very unsatisfactory. In CAF/2150 and 2151/2007,³Judge Jacobs held that the corresponding exclusionary provisions in the AFCS 2005 were for the most part merely declaratory because they dealt with situations in which injury, worsening of an injury or death would not in any case normally be regarded as having been caused by service. However, in SM v Secretary of State for Defence (AFCS),⁴Judge Rowland held (at [17]) that the object of article 11 of the AFCS 2011 appears to have been to introduce an element of clarity with regard to issues which had

¹For an analysis of the earlier provisions, see EW v Secretary of State for Defence [2011] UKUT

186 (AAC), [2012] AACR 3.

²[2014] UKUT 0194 (AAC).

³Unreported.

⁴[2017] UKUT 286 (AAC), [2018] AACR 4.

Page 130

130 War Pensions and Armed Forces Compensation – Law and Practice

caused difficulty when considering the scope of the social security civilian industrial injuries scheme and the War Pensions Scheme.

15.3 The exclusions in article 11 are subject to exceptions, but the fact that a situation falls within one of the exceptions to an exclusion does not mean that a claimant is necessarily entitled to benefit. In such cases, the exclusion will not apply, but it will still be necessary to decide in the normal way whether any of the conditions of entitlement in articles 8, 9 or 10 have been satisfied. However, the fact that the case falls within one of the exceptions to an exclusion may assist the claimant in showing that injury or death was caused by service.⁵

TRAVEL BETWEEN HOME AND WORK
15.4 Subject to the exceptions considered below, article 11(1) of the AFCS

2011 provides:

(1) ... benefit is not payable to or in respect of a person by reason of an injury sustained by a member, the worsening of an injury, or death which is caused (wholly or partly) by travel from home to place of work or during travel back again.

‘By travel’
15.5 The AFCS 2005 referred to an injury, worsening of an injury or death of a person occurring ‘while travelling’,⁶but article 11 of the AFCS 2011 applies to injury, worsening of an injury or death caused wholly or partly ‘by travel’ from home to place of work. Since ‘travel’ by itself cannot be a cause of injury, worsening of an injury or death, it is suggested that when applying this provision a similar approach should be taken as when considering whether something is a ‘service’ cause (see para 14.7). Where injury, worsening of an injury or death has been caused in the course of travel, it will be necessary to identify the ‘process’ cause of the harm (e.g. being struck by a car) and then to decide whether that cause has a sufficiently close connection with travel between a person’s home and work in order to decide whether the exclusion applies. Article 11(1) refers to injury, worsening of an injury or death caused wholly or partly ‘by’ travel from home to place of work, but ‘during’ travel back again. However, it seems inconceivable that the test of whether the exclusion applies depends on whether a person is on the outward or return journey between home to work, and it is suggested that the ‘by travel’ test applies in both cases. In SM v Secretary of State

⁵See para 14.8.

⁶AFCS 2005, art 10(4) and (5).

Page 131

for Defence (AFCS),⁷the claimant was injured as a result of a fall caused by a combination of a loose step and icy conditions while entering a headquarters building situated in a secure compound at an Army base. Judge Rowland held (at
[20]) that ‘... once the claimant had entered the secure compound and was going up the entrance steps to the building where he worked, he was no longer travelling but had arrived’.

Home
15.6 ‘Home’ is defined in article 11(10)(a) of the AFCS 2011 as ‘accommodation, including service accommodation, in which a member has lived or is expected to live for 3 or more months, and a member may have more than one home’. This definition is broad enough to cover accommodation in which a person lives separately from the rest of his or her family whilst working, including accommodation in an overseas country to which a person has been posted. It also appears to cover one of two or more homes occupied by a person who lives singly.

Place of work
15.7 ‘Place of work’ is defined in article 11(10)(b) of the AFCS 2011 as ‘the place of work to which a member is assigned or temporarily attached’. While the definition of ‘home’ requires a degree of permanence, the definition of ‘place of work’ covers any place of work to which a person has been assigned or temporarily attached, although not a place to which a person is merely directed to go in the course of his or her work. An operational theatre is not regarded by DBS Veterans UK as a place of work.⁸

Exceptions to travel exclusion

Change of place of work
15.8 Under article 11(2)(b) of the AFCS 2011, the exclusion in respect of travel between home and work does not apply ‘where a member is changing a place of work in the United Kingdom to a place outside the United Kingdom or during travel back again’. This exception clearly covers travel from home to a new place of work outside the United Kingdom, but apparently not where the old and the new place of work are both abroad. The position with regard to the return

⁷[2017] UKUT 286 (AAC), [2018] AACR 4.

⁸Ministry of Defence, JSP 765, Armed Forces Compensation Scheme Statement of Policy (Ministry of Defence, October 2020), para 2.25.

Page 132

132 War Pensions and Armed Forces Compensation – Law and Practice

journey is also unclear: presumably, the exception is intended to apply where a person is posted back to the United Kingdom following a posting abroad.

Travel to and from approved sporting activities
15.9 By article 11(2)(a) of the AFCS 2011, the disqualification in article 11(1)...